8) The Act specifically directed the Kean Commission to "examine" and "report" "the facts" and "the causes" to "make a full and complete accounting of the circumstances" surrounding the September 11th terrorist attacks, and to make recommendations designed to guard against future attacks.
Although some findings in the Report and related Kean Commission documents arguably favor the plaintiffs more than the aviation defendants, the plaintiffs opposed the aviation defendants' motion and requested that it be denied in its entirety.
Finally, this paper analyzes the court's July 16, 2009 Order and Opinion and concludes that the court should have found the Kean Commission Report and its accompanying documents to be admissible evidence under Rule 803(8)(C).
Kean, (14) former governor of New Jersey and, until July 2005, the president of Drew University, the Kean Commission reviewed more than 2 million documents, including classified national security documents containing Sensitive Security Information ("SSI"), interviewed more than thousand individuals in several countries, and took live testimony from many public officials and numerous experts from business and academia at open hearings.
Even if relevant, the Kean Commission documents still constitute hearsay and are inadmissible absent some exception to the hearsay rule.
Analysis of the Court's Opinion and Order on the Admissibility of the Kean Commission Report, Staff Statements and Monographs
In April 2008, the aviation defendants in the 9/11 litigation moved for a pretrial ruling that the Kean Commission Report, Aviation Monograph, and certain staff statements contain relevant evidence not excluded by the hearsay rule and thus are admissible at trial in their entirety.
In their opposition to the aviation defendants' motion, the plaintiffs argued that the monographs and staff statements ate interim reports of the Kean Commission staff rather than the Commission and therefore do not fall under the hearsay exception of FRE 803(8)(C).
In evaluating the admissibility of the relevant portions of the Kean Commission documents under Rule 803(8)(C), the court focused on whether the Aviation Monograph and staff statements were final reports issued by the Commission (50) and the trustworthiness of the Report.
55) The court ultimately held that the Aviation Monograph and staff statements ate inadmissible because they do not meet the requirements of FRE 803(8)(C) and that the Kean Commission Report is not admissible in full because of FRE 403 concerns.
By declining to decide which "relevant and appropriate findings" contained within the Kean Commission Report are admissible, the court ostensibly left open the question of whether the Report, or portions thereof, satisfies the public records exception to the hearsay rule.